said resolution. But said order was not complied with nor the work ended to which the people of the United States had devoted the Army and Navy, when Spanish sovereignty was expelled. The pacification of the island was yet to be effected. The prejudices, animosities, hatreds, strifes, resulting from many years of internal warfare, were to be allayed and the inhabitants molded into a homogeneous whole on which the foundations of a nation might rest, and thereafter a government constructed which would give to the island and its inhabitants peace, prosperity, and the largest degree of liberty consistent with the maintenance of individual rights and collective tranquillity.

As from time to time the sovereignty of Spain was forced to abandon the various sections of said island and the territory became subject to military occupation by the forces of the United States, there was installed a government of civil affairs in said sections, whereby was maintained the protection of individual and property rights for which governments are established. Eventually said government extended over the entire island.

If the doctrine is correct that a military government is a substitute, od interim, for sovereignty, and further, that the purposes for which the military forces of the United States were sent into Cuba are uncompleted, it would seem to follow that said military government may properly exercise the rights of a belligerent without regard to the fact that the war has ended."

Speaking of the powers exercised by the officer in command in Texas under the reconstruction acts, the supreme court of Texas say:

In Texas this officer exercised powers legislative and executive, if not judicial. (Daniel r. Hutcheson, 86 Texas, 57.)

In the same case the court say:

That the State was governed by military law, even though its own laws may to some extent have been recognized and administered, must be considered an established fact.

The power of the United States Government to impose such a rule upon the State must be recognized as fully, under the facts existing, as though Texas had theretofore been an independent sovereignty, having no relation to the United States than that usually sustained by one independent nation to another.

Civil war had existed of magnitude seldom exceeded, resulting in the overthrow by force of arms of the cause the State had espoused and the occupation of her territory by a hostile army.

This occupancy was continued, and under the laws of war furnished ground for the establishment of military law. (66 Texas, p. 60.)

In letter to Secretary of War, dated September 8, 1900, the Attorney-General says: "Cuba, therefore, rightly continues to be governed under the law of belligerent right. * * According to the law of belligerent right the conqueror

*

*

*

*

may make such new laws, rules and regulations as he sees fit." (See post., 370.)

1394-03-3

In another case the supreme court of Texas, in speaking of the reconstruction acts, say:

The National Legislature used its legitimate powers with moderation and magnanimity, endeavored to encourage the formation of republican governments in these States and bring the people back to a due appreciation of the law and of the liberty which is secured to the free enjoyment of every citizen under the Constitution. (33 Texas, 570.)

It is true that the authority to exercise the legislative and judicial authority was conferred upon the officers in command of the several military districts created by the reconstruction acts, by Congress; yet when the war powers of the nation are called into action, the Commander in Chief of our military forces may confer a like authority, in territory affected by military operations, upon the military commanders.

IV.

SHOULD CONGRESS BE INVOKED TO ASSUME DIRECTION AND CONTROL IN THE CONDUCT OF THE MILITARY GOVERNMENT OF CUBA?

If the President of the United States were not the Commander in Chief of the Army and Navy, he would have little, if any, authority to participate in the government of civil affairs in Cuba. Such authority as he possesses in connection with said government belongs to and is to be exercised by the Commander in Chief of the military forces of the United States. This results from the fact that the only powers of the United States which anyone is authorized to exercise in the island of Cuba are the war powers of this nation; and the only instrument or agency of the United States authorized by Congress or by our theory of government to exercise said war powers in Cuba is the military arm or branch of the Government of the United States.

As a general proposition, it is true that wherever the sovereignty of the United States attaches the Congress may prescribe the ways and means, the manner, and methods by which such sovereignty is to be asserted.

This presents the inquiry: Ias the sovereignty of the United States attached to Cuba? Did not the resolution of Congress passed April 20, 1898, recognize and declare that the sovereignty of the island was in the people of Cuba and further that the United States disclaimed the right or intention of securing, assuming, or exercising sovereignty in Cuba? Is not Congress, by its own acts, estopped from legislating in regard to the affairs of civil government in Cuba?

The character of the military government now being maintained in Cuba has been discussed at length for the purpose of showing that it continues to derive its powers from the laws and usages of war, if not flagrante, at least nondum cessante bello. If this proposition is correct, it follows that the Commander in Chief in conducting said government exercises the right of a belligerent. In other words, the operations of

said government are to be considered as being the same as the military operations of a belligerent. What power has Congress to direct the operations of our military forces engaged in the conduct of a war in a foreign country?

Chief Justice Chase, in the minority opinion in Er parte Milligan, said (4 Wall., 139):

Congress has the power not only to raise and support and govern armies, but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as Commander in Chief. Both these powers are derived from the Constitution, but neither is defined by that instrument. Their extent must be determined by their nature and by the principles of our institutions.

The power to make the necessary laws is in Congress; the power to execute in the President. Both powers imply many subordinate and auxiliary powers. Each includes all authorities essential to its due exercise. But neither can the President,

in war more than in peace, intrude upon the proper authority of Congress, nor Congress upon the proper authority of the President.

Of necessity, a military government resorts to martial rule, or martial law. Should Congress undertake to legislate for a military government and prescribe the rules and regulations of its conduct, Congress would enter upon the dangerous undertaking of giving to martial law the sanction and fixed character of legislative enactment. Under our theory of government martial rule, whether exercised by a military government or the military arm of a civil government, arises from necessity, ceases with the necessity, and during its continuance its every act must be justified by necessity. Herein is to be found the safeguard against the arbitrary exercise of military power in time of martial rule. The military person exercising power under martial rule is liable to be called before the courts, after martial rule has ceased, and required to justify his action by showing the necessity therefor or respond in damages.

In Mitchell v. Harmony (13 How., 115, 134) the court sav:

But we are clearly of opinion that in all of these cases the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay and where the action of the civil authority would be too late in providing the means which the occasion calls for. It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend on its own circumstances. It is the emergency that gives the right, and the emergency must be shown to exist before the taking can be justified. But if Congress has the authority and shall exercise it and make martial rule the subject of legislation, then the justification of the acts of persons enforcing martial rule becomes a question of law and not of necessity. The legislative act would be a justification which could not be impeached, and the person injured would be without remedy. (Cooley's Constitutional Law, p. 148; Griffin . Wilcox, 21 Ind., 370;

Johnson . Jones, 44 Ill., 142; Hare's American Constitutional Law, vol. 2, p. 968; Pomeroy's Constitutional Law, sec. 709 et seq.)

If Congress regulates the exercise of that military power over civil rights which we call martial law, the military person who acts within the limits of such legislation would be protected by it, for the act of Congress would be an exercise of its political power, and the necessity therefor or the expediency thereof could not be inquired into by the

courts.

Bennett's edition of Pomeroy's Constitutional Law lays down the rule as follows:

This military law-or, in other words, this code of positive, enacted, statutory rules for the government of the land and naval forces-is something very different from martial law, which, if it exists at all, is unwritten, a part and parcel of the means and methods by which the Commander in Chief may wage effective war, something above and beyond the jurisdiction of Congress; for that body has no direct authority over the actual conduct of hostilities when war has been initiated. (Sec. 469, p. 385. ) The same author further says:

When actual hostilities have commenced, either through a formal declaration made by Congress or a belligerent attack made by a foreign government which the President must repel by force, another branch of his function as Commander in Chief comes into play. He wages war; Congress does not. The Legislature may, it is true, control the course of hostilities in an indirect manner, for it must bestow all the military means and instruments; but it can not interfere in any direct manner with the actual belligerent operations. Wherever be the theater of the warlike movements, whether at home or abroad, whether on land or on the sea, whether there be an invasion or a rebellion, the President as Commander in Chief must conduct those movements; he possesses the sole authority and is clothed with the sole responsibility. (Sec. 706, p. 591.)

PHILIPPINE ARCHIPELAGO.

The Philippine Archipelago was not included in the Congressional resolution approved April 20, 1898, and the military government established in those islands was originally an instrument for promoting the war with Spain. Although the United States has acquired the rights of sovereignty over those islands, it has not entered into peaceable and undisputed possession thereof. In establishing that possession it encounters an armed insurrection, against which it is conducting military operations and with the forces of which it is engaged in active hostilities. The military government of the islands has been continued! and is now utilized as a means of suppressing said armed insurrection, and therefore is authorized to exercise the rights of a belligerent.

The Secretary of War approved the views set forth in the foregoing report, and the policy of the War Department, in respect of said military governments, has accorded with the principles discussed and conclusions reached therein.

[Case No. 1441, Division of Insular Affairs, War Department.]

LEGAL STATUS OF THE TERRITORY AND INHABITANTS OF THE ISLANDS ACQUIRED BY THE UNITED STATES DURING THE WAR WITH SPAIN, CONSIDERED WITH REFERENCE TO THE TERRITORIAL BOUNDARIES, THE CONSTITUTION, AND LAWS OF THE UNITED STATES.

[Submitted February 12, 1900. Printed as a War Department publication by order of the Secretary of War. Printed as a Senate Document (two editions) by order of the Senate, Fifty-sixth Congress, first session, Doc. No. 234. By order of the House of Representatives (Res, No. 197, Fifty-sixth Congress) 10,000 additional copies were printed for the use of the House.]

SIR: In response to your request, I have the honor to report upon the following questions of law:

1. Have the territorial boundaries of the United States been extended to embrace the islands of the Philippine Archipelago, the island of Guam, and the island of Porto Rico!

2. Are said islands and their inhabitants bound and benefited, privileged and conditioned by the provisions of the Constitution of the United States?

3. Has the Congress of the United States jurisdiction to legislate for said islands and their inhabitants?

4. Must such legislation conform to the constitutional requirements regarding territory within the boundaries of the several States of the United States and citizens domiciled therein?

The power to extend or contract the territorial boundaries of the United States is vested in the political branch of our Government, to wit, the two Houses of Congress acting with the approval of the Executive. It is not to be exercised by the President, either as Chief Executive or as Commander in Chief of the military forces. The territorial boundaries of the United States do not advance with its successful armies nor retire before an invading foe. (Fleming et al. . Page. 9 How. (U. S.), 603; United States e. Rice, 4 Wheat. (U. S.), 246.) The United States derives the right to acquire territory from the fact that it is a nation; to speak more definitely, a sovereign nation. Such a nation has an inherent right to acquire territory, similar to the inherent right of a person to acquire property. (American Ins. Co. . Canter, 1 Peters, 542; Mormon Church . United States, 136 U. S.. 1. 42.)

In fact, the territory, i. e., the stretch of country, when acquired by conquest, treaty, or discovery, is at first a possession appertaining or property belonging to the United States. The subsequent erection therein of a political entity or government, whether State or Territorial, and the bestowal of citizenship upon the inhabitants are acts of grace on the part of the new owner or sovereign. Such acts of grace